NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 62-149937)
Appointed counsel for defendant Christopher Dean Martin filed an opening brief that sets forth the facts of the case and asks this court to review the record to determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436 (Wende).) After reviewing the entire record, we affirm the judgment.
We provide the following brief description of the factual and procedural background of the case. (See People v. Kelly (2006) 40 Cal.4th 106, 110, 124.)
On March 8, 2017, defendant was charged by a first amended felony complaint with two counts of willfully committing a lewd and lascivious act upon a child of 15 years when he was 10 years older than that child (Pen. Code, § 288, subd. (c)(1)—counts one and three), one count of unlawful intercourse with a minor under the age of 16 years of age (§ 261.5, subd. (d)—count two), one count of oral copulation with a person under 16 years of age (§ 288a, subd. (b)(2)—count four), two counts of communication with a minor with the intent to commit an unlawful sexual offense (§ 288.3, subd. (a)—counts five and six), one count of possession for sale of a controlled substance (methamphetamine) (Health & Saf. Code, § 11378—count seven), and one count of possession of marijuana for sale (Health & Saf. Code, § 11359—count eight).
Undesignated statutory references are to the Penal Code. --------
Pursuant to a plea agreement, defendant agreed to plead no contest to counts four and six in exchange for the dismissal of the remaining counts. The agreement included a suspended prison sentence of two years four months, five years of probation with terms and conditions deemed appropriate by the probation department, a maximum term of 364 days in county jail, and 10-year restraining orders prohibiting defendant from having contact with the two victims.
At the change of plea hearing, the prosecutor provided the following factual basis for defendant's pleas: "As to Count Four, on or about and between January 1st, 2016 and June 1st, 2016, the defendant at the age of 32 had a relationship with Jane Doe One, a minor under the age of 16 years with a date of birth of June 13th, 2000. During the course of the relationship, the defendant brought Jane Doe One to his house in Roseville in the County of Placer knowing she was a minor under the age of 16 and received oral sex from the minor as reflected in the Roseville Police Department report 2016-74528. [¶] As to Count Six, on or about and between September 27th, 2016 and October 2nd, 2016, while in Placer County, the defendant communicated with Jane Doe Two, a minor under the age of 16 with a date of birth of May 20th, 2001 on the Internet. During the course of their communication, the defendant requested that Jane Doe Two perform oral sex on the defendant knowing her to be a minor in violation of Penal Code section 288a[, subdivision] (b)(2), also reflected in Roseville Police Department report 2016-74528."
After defendant pleaded no contest to counts four and six, the trial court sentenced him to two years four months in state prison. The execution of sentence was suspended and defendant was placed on probation for five years with various terms and conditions, including the condition he serve 364 days in county jail and the condition he not be within 100 yards of places where children congregate (e.g., schools, parks, playgrounds, video arcades, swimming pools). The stay-away condition provided that probation had the discretion to allow defendant to reside at his mother's residence, which was located near a middle school. The condition also provided that if probation denied defendant's request to reside with his mother he could challenge that decision. The trial court imposed various fines and fees, dismissed the remaining counts, and indicated that it would issue a 10-year restraining order for each victim.
One week after sentencing, defendant filed a motion requesting the trial court modify the probation condition prohibiting him from being within 100 yards of schools. Specifically, he requested the condition be modified to allow him to live with his parents. In making this request, defendant asserted that the probation officer "ordered" that he not reside with his parents because of the home's proximity to a middle school. He argued that the condition is unconstitutional, overbroad, and denied him a fundamental right to housing. According to defendant, he would be homeless if he were not allowed to live with his parents.
At the hearing on the motion, defendant argued, among other things, that the challenged probation condition is a blanket condition imposed in all sex offender cases, and that the condition, as applied to him, violated his First Amendment right to associate and his Fourteenth Amendment right to substantive due process. He requested that the court permit him to be within 100 yards of the middle school near his parents' house but only for his place of residence. In support of his request, he noted that he had no other place to live following his release from custody.
The trial court denied defendant's motion, reasoning that he had been convicted of molesting children of middle school age and therefore should not be in the vicinity of a middle school for public safety and for his rehabilitation.
Defendant filed a timely notice of appeal. He did not obtain a certificate of probable cause.
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts and procedural history of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (Wende, supra, 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days from the date the opening brief was filed. More than 30 days have elapsed, and defendant has not filed a supplemental brief. Having undertaken an examination of the entire record pursuant to Wende, we find no arguable error that would result in a disposition more favorable to defendant. Consequently, we affirm the judgment. (Id. at p. 443.)
The judgment is affirmed.
BUTZ, J. We concur: BLEASE, Acting P. J. HULL, J.